Fargo City Commission - May 2, 2022 Minutes

The Regular Meeting of the Board of City Commissioners of the City of Fargo, North Dakota, was held in the City Commission Chambers at City Hall at 5:00 o'clock p.m., Monday, May 2, 2022.
The Commissioners present or absent were as shown following:
Present: Gehrig, Piepkorn, Preston, Strand, Mahoney.
Absent: None.
Mayor Mahoney presiding.
The Mayor read a message with the following information: Mayors from Fargo, West Fargo, Moorhead and Dilworth signed a proclamation recognizing May as Mental Health Awareness Month; the Library is offering Tech Help sessions to help residents with tablets, laptops, e-readers and smartphones; a Teen Craft event featuring a Mother’s Day craft is May 5th; the Adopt-A-Street program created in 1990 to enhance the aesthetic of Fargo’s roadways by clearing litter from City entrances, right-of-way areas and arterial roadways, includes 29 volunteer groups; the Forestry Department has maintained a CPR, AED and First Aid certification program for its staff for the last several years and now CPR training is provided for all Public Works staff; and a video was shown from the joint Fargo/West Fargo Fire Academy graduation.

Order of Agenda Approved:
Commissioner Piepkorn moved the Order of the Agenda be approved.

Second by Preston. All the Commissioners voted aye and the motion was declared carried.

Minutes Approved:
Commissioner Preston moved that the Minutes of the Regular Meeting of the Board held on April 18, 2022 be approved as read.

Second by Gehrig. All the Commissioners voted aye and the motion was declared carried.

Consent Agenda Approved:
Commissioner Strand moved the Consent Agenda be approved as follows:
1. Interest Buydown Agreement and Escrow Agreement – Pace Program with the Bank of ND for the purpose of a buy down on the interest loan received by Epic Gateway N RE Holdings LLC.
2. Letter of Support for the PharmaMed Automation, Inc. project to the North Dakota Opportunity Fund.
3. Reject the bids for the Civic Center Parking Ramp vertical expansion and reconsider the project in 2023 (AFB22060).
4. Receive and file the following Ordinances:
a. Amending Section 1-0305 of Article 1-03 of Chapter 1 of the Fargo Municipal Code Relating to Classification of Ordinance Violations.
b. An Ordinance Repealing and Re-enacting Article 21-01 of Chapter 21 of the Fargo Municipal Code Relating to the International Building Code.
c. An Ordinance Repealing and Re-enacting Article 21.1-01 of Chapter 21.1 of the Fargo Municipal Code Relating to the International Residential Code.
d. An Ordinance Repealing and Re-enacting Article 21.2-01 of Chapter 21.2 of the Fargo Municipal Code Relating to the International Existing Building Code.
e. An Ordinance Repealing and Re-enacting Section 30-0106 of Article 30-01 of Chapter 30 of the Fargo Municipal Code Relating to the International Mechanical Code.
f. An Ordinance Repealing and Re-enacting Article 30.1-01 of Chapter 30.1 of the Fargo Municipal Code Relating to the International Fuel Gas Code.
g. An Ordinance Repealing and Re-enacting Article 31-01 of Chapter 31 of the Fargo Municipal Code Relating to the International Property Maintenance Code.
h. An Ordinance Repealing and Re-enacting Chapter 21.3 of the Fargo Municipal Code Relating to the International Energy Conservation Code.
i. An Ordinance Repealing and Re-enacting Sections 9-0701 and 9-0704 of Article 9-07 of Chapter 9 of the Fargo Municipal Code Relating to Fire Protection and Prevention.
5. Site Authorizations for Games of Chance:
a. Special Olympics North Dakota at Rooters Bar.
b. Boys and Girls Club of the Red River Valley at Fargo Billiards/Gastropub.
c. Fargo Metro Baseball Association at Specks Bar.
d. Fargo Metro Baseball Association at Empire Tavern.
6. Application for Games of Chance:
a. Fargo Rotary FM for a raffle on 6/21/22.
b. NDSU Judging Club for a raffle on 6/6/22.
7. Application to add a new owner on the Class “ABH-Limited” Alcoholic Beverage License at the Fargo Residence Inn located at 4335 23rd Avenue South.
8. Extension of the Class “AC“ Alcoholic Beverage License for the Northern Prairie Performing Arts d/b/a The Stage at Island Park, Fargo Moorhead Community Theatre until 11/1/22.
9. Agreement for Special Improvements with Tillstone Group, LLC (Special Improvement District No. BN-22-F1).
10. Agreement for Special Improvements with Scheels All Sports, Inc. (Special Improvement District No. BN-22-K1).
11. Use of CARES funds to provide cleaning services at the Downtown and Carlson Libraries.
12. Access Easement (Street, Water and Sewer) with Southeast Cass Water Resource District.
13. Pond Access and Maintenance Easement with Tillstone Group, LLC.
14. License Agreement with USA Department of Energy Western Area Power Administration (WAPA).
15. Memorandum of Offer to Landowner for Easement (Temporary Construction Easement) with Adam and Marcy Rinas (Project No. FM-19-C).
16. Change Order No. 1 in the amount of $10,360.00 and Final Balancing Change Order No. 2 in the amount of $11.50 for Project No. PR-21-A1.
17. Bid advertisement for Project No. SR-22-C.
18. Bid awards for the following projects:
a. Fargo Electric Construction, Inc. in the amount of $399,276.80 for Project No. SL-22-A1.
b. Strata Corporation in the amount of $685,512.50 for Project No. TN-22-B1.
c. GreenEarth Landscaping LLC in the amount of $69,810.00 for Project No. TP-21-B1.
19. Sole Source Procurement for a three-year period for replacement purchases through several existing vendors at the FARGODOME (SSP22081).
20. State Water Commission request for cost reimbursement for the Fargo-Moorhead Metropolitan Area Flood Risk Management Project in the amount of $5,062,879.53.
21. Notice of Grant Award with the ND Department of Emergency Services Division of Homeland Security for the FY 2020-2021 Hazardous Materials Emergency Preparedness Training Grant (CFDA #20.703).
22. Bid award to EAPC for Architectural Design Services for Fire Stations 2 and 8 (RFQ22059).
23. Bid award to Valley Green and Associates for mowing of tall grass and
weeds – code enforcement (RFP22049).
24. Resolution Approving the 2022 Annual Action Plan, Analysis of Impediments to Fair Housing and Amendments to the 2021 Annual Action Plan for the Community Development Block Grant (CDBG) and HOME Programs (Attachment “A”).
25. Resolutions approving Plats for the following:
a. Bank Forward Addition (Attachment “B”).
b. University South 3rd Addition (Attachment “C”).
c. West Acres Seventh Addition (Attachment “D”).
26. Request to solicit proposals for an upgrade to the indoor firearms range.
27. Bid award to Compass Minerals America, Inc. at a price of $112.98 per ton for the 2022/2023 highway deicing salt contract (RFP22068).
28. Change Order No. 2 for an increase of $18,690.00 for the GTC Exterior Renovation.
29. Contracts and bonds for Project Nos. SR-22-B1 and UR-21-B1.
30. Bills in the amount of $10,183,308.52.

Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Memorandum of Offer to Landowner for Easement (Temporary Construction Easement) with Wal-Mart Real Estate Business Trust for Improvement District No. BN-22-F1:
The Board received a communication from Land Acquisition Specialist Shawn Bullinger requesting authorization to proceed with a Memorandum of Offer to Landowner for Easement (Temporary Construction Easement) with Wal-Mart Real Estate Business Trust in association with Improvement District No. BN-22-F1. He said a final purchase price has been reached and authorization from the Board is requested to proceed with the purchase.
Commissioner Strand moved the Memorandum of Offer to Landowner for Easement (Temporary Construction Easement) with Wal-Mart Real Estate Business Trust for Improvement District No. BN-22-F1 be approved.

Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

New Utility and Paving Construction Improvement District No. BN-22-F (On Tillstone Drive Between 55th Avenue and 38th Street South):
Commissioner Strand moved the following action be taken in connection with New Utility and Paving Construction Improvement District No. BN-22-F:

Adopt Resolution Creating Improvement District No. BN-22-F:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, deems it expedient that Improvement District No. BN-22-F in the City of Fargo, North Dakota, be created

LOCATION:
On Tillstone Drive between 55th Avenue South and 38th Street South.
To be platted in The District of Fargo Fourth Addition.

COMPRISING:
Lots 1&2, Block 2.
All platted in The District of Fargo 2nd Addition.

All of the foregoing is located in the City of Fargo, Cass County, North Dakota.

NOW, THEREFORE, BE IT RESOLVED, That New Utility and Paving Construction Improvement District No. BN-22-F in the City of Fargo, North Dakota, be and the same is hereby created.

Request Report and Estimate of Cost From the City Engineer for Improvement District No. BN-22-F:
Direct City Engineer to report as to the general nature, purpose and feasibility relative to the construction of Improvement District No. BN-22-F in the City of Fargo, North Dakota; as well as an estimate of the approximate cost of said construction. (The Engineer's estimate of cost is $1,943,798.24.)

Order Plans and Specifications for Improvement District No. BN-22-F:
Direct City Engineer to prepare Plans and Specifications for the construction of Improvement District No. BN-22-F in the City of Fargo, North Dakota.

Adopt Resolution Approving Plans and Specifications and Engineer's Report for Improvement District No. BN-22-F:
WHEREAS, The Board of City Commissioners of the City of Fargo, North Dakota, has created Improvement District No. BN-22-F in the City of Fargo, North Dakota, as required by law; and
WHEREAS, Plans and Specifications and the Engineer's Report prepared by the City Engineer, have been considered.
NOW, THEREFORE, BE IT RESOLVED, That the Plans and Specifications and Engineer's Report for the construction of Improvement District No. BN-22-F in the City of Fargo, North Dakota, be and the same are hereby approved and ordered filed in the Office of the City Auditor.

Adopt Resolution Declaring New Utility and Paving Construction Necessary:
BE IT RESOLVED BY THE BOARD OF CITY COMMISSIONERS OF THE CITY OF FARGO:
That it be and is hereby declared necessary to construct New Utility and Paving Construction Improvement District No. BN-22-F in the City of Fargo, North Dakota, according to the Engineer’s Report for this district and the Plans and Specifications approved by the Board of City Commissioners of the City of Fargo, North Dakota, filed in the Office of the City Auditor, and open for public inspection. A map of the district is attached hereto and incorporated as if fully set forth herein.
That a portion of said New Utility and Paving Construction improvement is to be paid from State and Local Funds, and approximately 96% is to be assessed against the benefited property in amounts proportionate to and not exceeding the benefits to be derived by them respectively from said improvement.
Protests against the proposed New Utility and Paving Construction must be in writing and must be filed with the City Auditor's Office within 30 days after the first publication of this Resolution.

Direct City Auditor's Office to Call for Bids for Improvement District No. BN-22-F:
Direct City Auditor's Office to publish a Notice, as required by law, calling for bids for the construction of Improvement District No. BN-22-F in the City of Fargo, North Dakota.

Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Alley Paving Improvement District No. AN-22-A1: Protests Received and Declared Sufficient to Protest Project Out:
The Statutory Resolution of Necessity for the construction of Alley Paving Improvement District No. AN-22-A1 in the City of Fargo, North Dakota, was duly published in the official newspaper for the City of Fargo, North Dakota on March 30 and April 6, 2022, and protests representing 60 percent of the legal protest area have been received and filed in the office of the City Auditor within the legal protest period.
Commissioner Strand moved the protests be received and filed, and declared sufficient to protest the project out.

Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

No Protests Received for New Paving and Utility Construction Improvement District No. BN-22-K1:
The Statutory Resolution of Necessity for the construction of New Paving and Utility Construction Improvement District No. BN-22-K1 in the City of Fargo, North Dakota, was duly published in the official newspaper for the City of Fargo, North Dakota, on March 30 and April 6, 2022 and no protests either written or verbal have been received or filed in the office of the City Auditor within the legal protest period, nor at any time.
Commissioner Strand moved that the Board declare that no protests have been filed to the construction of New Paving and Utility Construction Improvement District No. BN-22-K1.

Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Bids Received for New Paving and Utility Construction Improvement District No. BN-22-K1:
The bids for New Paving and Utility Construction Improvement District No. BN-22-K1 in the City of Fargo, North Dakota were opened at 11:45 o'clock a.m., April 13, 2022 and the bids were found to be as follows:

Dakota Underground Company Fargo, ND
Bid: $2,097,075.87

Northern Improvement Company Fargo, ND
Bid: $2,459,552.93

Contract for New Paving and Utility Construction Improvement District No. BN-22-K1 Awarded to Dakota Underground Company in the Amount of $2,097,075.87:
Commissioner Strand offered the following Resolution and moved its adoption:
WHEREAS, The City Engineer has prepared and filed a detailed statement of the estimated costs of New Paving and Utility Construction Improvement District
No. BN-22-K1; and
WHEREAS, The Board of City Commissioners of the City of Fargo has considered the bids received April 13, 2022 for New Paving and Utility Construction Improvement District No. BN-22-K1 in the City of Fargo, North Dakota; and
WHEREAS, The City Engineer's tabulation of the bids received for New Paving and Utility Construction Improvement District No. BN-22-K1 shows the bid of Dakota Underground Company of Fargo, North Dakota, in the sum of $2,097,075.87 to be the lowest and best bid received.
NOW, THEREFORE, BE IT RESOLVED, That the Board of City Commissioners finds and declares the bid received from Dakota Underground Company in the sum of $2,097,075.87 is the lowest and best bid received.
BE IT FURTHER RESOLVED, That the contract for New Paving and Utility Construction Improvement District No. BN-22-K1 in the City of Fargo, North Dakota, be and the same is hereby awarded to Dakota Underground Company for the sum of $2,097,075.87, subject to the supervision, inspection and approval of the City Engineer, and in accordance with the Plans and Specifications filed in the office of the City Auditor.

Second by Gehrig. On the vote being taken on the question of the adoption of the Resolution Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

No Protests Received for Concrete Paving Rehab/Reconstruction Improvement District No. PR-22-C1:
The Statutory Resolution of Necessity for the construction of Concrete Paving Rehab/Reconstruction Improvement District No. PR-22-C1 in the City of Fargo, North Dakota, was duly published in the official newspaper for the City of Fargo, North Dakota on March 30 and April 6, 2022 and no protests have been filed in the office of the City Auditor within the legal protest period.
Commissioner Strand moved that the Board declare that no protests have been filed to the construction of Concrete Paving Rehab/Reconstruction Improvement District No. PR-22-C1.

Second by Gehrig. On call of the roll Commissioners Strand, Gehrig, Piepkorn, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Bids Received for Concrete Paving Rehab/Reconstruction Improvement District No. PR-22-C1:
The bids for Concrete Paving Rehab/Reconstruction Improvement District No. PR-22-C1 in the City of Fargo, North Dakota were opened at 11:45 o'clock a.m., Wednesday, April 27, 2022 and the bids were found to be as follows:

Dakota Underground Company Fargo, ND
Bid: $4,514,105.70

Strata Corporation Grand Forks, ND
Bid: $4,597,799.65

Contract for Concrete Paving Rehab/Reconstruction Improvement District No. PR-22-C1 Awarded to Dakota Underground Company in the Amount of $4,514,105.70:
Commissioner Strand offered the following Resolution and moved its adoption:
WHEREAS, The City Engineer has prepared and filed a detailed statement of the estimated costs of Concrete Paving Rehab/Reconstruction Improvement District No. PR-22-C1; and
WHEREAS, The Board of City Commissioners of the City of Fargo has considered the bids received April 27, 2022 for Concrete Paving Rehab/Reconstruction Improvement District No. PR-22-C1 in the City of Fargo, North Dakota; and
WHEREAS, The City Engineer's tabulation of the bids received for Concrete Paving Rehab/Reconstruction Improvement District No. PR-22-C1 shows the bid of Dakota Underground Company of Fargo, North Dakota in the sum of $4,514,105.70 to be the lowest and best bid received.
NOW, THEREFORE, BE IT RESOLVED, That the Board of City Commissioners finds and declares the bid received from Dakota Underground Company in the sum of $4,514,105.70 is the lowest and best bid received.
BE IT FURTHER RESOLVED, That the contract for Concrete Paving Rehab/Reconstruction Improvement District No. PR-22-C1 in the City of Fargo, North Dakota, be and the same is hereby awarded to Dakota Underground Company for the sum of $4,514,105.70, subject to the supervision, inspection and approval of the City Engineer, and in accordance with the Plans and Specifications filed in the office of the City Auditor.

Resident Comments:
Jacqueline Dotzenrod spoke about accessibility to City Hall for people in wheelchairs; Victoria Johnson spoke about autism; Will Thompson spoke about mental health; and Ves Marinov spoke about community safety.

Application to Transfer the Alcoholic Beverage License from The Hotel Donaldson, LLC d/b/a Hotel Donaldson to Blarney Stone Pub HoDo, LLC d/b/a Blarney Stone Pub HoDo Approved:
A Hearing had been set for this day and hour on an application to transfer the Class "ABH-RZ" Alcoholic Beverage License from The Hotel Donaldson, LLC d/b/a Hotel Donaldson to Blarney Stone Pub HoDo, LLC d/b/a Blarney Stone Pub HoDo at 101 Broadway notice of which had been duly published in the official newspaper for the City of Fargo.
No written protest or objection to the granting of the application has been received or filed in the office of the City Auditor, and said application has been approved by the Police Department as to the character of the applicant.
The Board determined that no person is present at this Hearing to protest or offer objection to the granting of the application.
City Auditor Steve Sprague said a new ownership group intends to continue operating the hotel and modify the restaurant/bar into a Blarney Stone, a business concept which they have had success with in West Fargo and Bismarck.
Commissioner Piepkorn moved the application be approved.

Second by Preston. On call of the roll Commissioners Piepkorn, Preston, Gehrig, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Terri Gayhart Appointed Director of Finance:
Assistant City Administrator Michael Redlinger said the City, in conjunction with executive search consultant Baker Tilly, advertised, recruited and screened prospective candidates for the position of Director of Finance. He said 18 applications were received and during the week of March 21st, six applicants participated in virtual first-round interviews. Following this initial screening, he stated, Terri Gayhart visited Fargo to tour the community and interview for the position. A Selection Committee of City staff was formed to interview Ms. Gayhart, he said, and City staff from several departments met with her and participated in a question and answer session. She was also provided a community tour to gain an understanding of the community, its neighborhoods, businesses and the City’s governmental facilities, he said. Following the interview process, he said, the Selection Committee recommended the appointment of Ms. Gayhart to the position of Director of Finance.
Ms. Gayhart (via conference call) said she has worked in government for a long time, she studied governmental accounting and has been successful in her career. She said she was fortunate to meet the team in Fargo and she is excited for the opportunity to fulfill the role of Director of Finance.
Commissioner Strand said Fargo embraces female leadership, he is proud of the City and its open-mindedness and he looks forward to working with Ms. Gayhart.
In response to a question from Commissioner Preston asking if there will be a work plan from Ms. Gayhart, Mr. Redlinger said after she is more familiar with the organization, she will work with the liaison Commissioner on a short-term work plan. He said she is going to have ideas from her municipal experience and the City will be interested in learning from her as well.
Commissioner Strand moved the appointment of Terri Gayhart as the Director of Finance be approved.

Second by Preston. On call of the roll Commissioners Strand, Preston, Gehrig, Piepkorn and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Presentation on the North Dakota Department of Transportation Funding Proposal:
Fargo-Moorhead Metropolitan Council of Governments (MetroCOG) Executive Director Cindy Gray said the funding scenario proposed by the ND Department of Transportation (NDDOT) to MetroCOG’s Policy Board raised some concerns among members, including the future use of National Highway Preservation Program (NHPP) funds on the National Highway System (NHS), which are roadways within the metropolitan area. She said NDDOT and MetroCOG have been working together to identify upcoming process changes as MetroCOG transitions to Transportation Management Area (TMA) status in 2023. As a TMA, MetroCOG will have responsibilities for selecting projects and programming funds and NDDOT, with assistance from the Federal Highway Administration’s North Dakota Division (FHWA-ND), prepares an estimate of funds for sub-allocation to the TMA. She said the estimate provided is for planning purposes and subject to change as final information is made available at the federal level. To date, she said, MetroCOG and the NDDOT have worked to identify Urban and Transportation Alternative (TA) project priorities for the Transportation Improvement Program (TIP)/Statewide TIP for fiscal years 2023-2025. As a TMA urbanized area, MetroCOG will receive a direct sub-allocation of funds from the Surface Transportation Block Grant (STBG) and TA program funds, she said. Also under the new legislation, she said, Congestion Mitigation and Air Quality (CMAQ) funds will be a line item and when the federal register comes out with the funding allocations for each state, the Fargo metro area will now join larger metropolitan areas that have a line item of funding in those three categories designated for the North Dakota portion of the metro area. She said once that happens, local leaders from each jurisdiction have the responsibility of prioritizing and selecting construction projects to be funded. In the meantime, she said, MetroCOG has been working with the NDDOT to determine what those funding levels will be. She said the Fargo area is the first TMA in North Dakota, so there has been a learning curve. The TA share is good news, she said, due to the fact that it ends up being about twice as much as what MetroCOG usually gets in terms of specific projects out of the state selection process. She said the CMAQ funds are aimed at things such as electric vehicle readiness, changing streetlights to LED and other infrastructure improvements that reduce the production of carbon. She said what is really at issue is the NHPP and the share the State intends to apply within the Fargo metropolitan area. Just under $2 million a year is what NDDOT has estimated Fargo’s centerline roadway mileage is of the whole State of ND network, she said, which is about 1 percent of what they are getting. She said on an annual basis NDDOT gets about $181 million and NDDOT is suggesting to MetroCOG they provide $1.8 million, going up to about $2 million over the next four years. She said as a result of that, NDDOT would only have responsibility for the interstate system and the metro area would take responsibility for roadways on the NHS that are not interstates, which is a big concern. She is asking local leadership to support MetroCOG to pursue this further with NDDOT leadership, she said, and try to get that position changed so the NHS consists of the interstate highways and roadways in the State's jurisdiction, such as Main Avenue, which is Highway 10, 12th Avenue North, 19th Avenue North, and University and 10th Street, which are all designated highways. She said those are also the highways that take most of the freight traffic to the industrial areas and interstate. In discussions thus far, she said, NDDOT has indicated they would not spend NHPP funds on these roadways once they give MetroCOG $2 million and that is insufficient to maintain the system. Over time, the bulk of those other funds would end up going to maintain these roadways in MetroCOG’s network, she said, and when looking at the projects in the TIP, that is why MetroCOG is concerned. In 2022, she said, the metro area is spending just over $13 million of STBG funds and there is a small amount of COVID-19 relief funds Fargo is spending on the 32nd Avenue South project; however, that $13 million makes up more than half of overall spending on roadways eligible for federal funding. Moving into 2023 with the proposal NDDOT has given, MetroCOG would have about $9.6 million; however, the TIP is already almost $8.4 million of NHPP funds designated for the Main Avenue project and based on what NDDOT has said, this would require a change in the TIP and that would now come out of MetroCOG’s STBG funds. She said that should remain as NHS funding and the local jurisdictions should be able to use the $8.3 million for other needed projects. She said there is still time to get those projects ready for the use of federal funds if MetroCOG can get this reversed and timing is of the essence due to the fact that it takes time to get a project ready for federal funding. MetroCOG will be receiving a draft Memorandum of Understanding from NDDOT soon, she said, and NDDOT should continue programming NHPP funds for NHS roads that are under the State's jurisdiction to ensure that direct sub-allocation of STBG funds for MetroCOG can be used on the local roadway network to the greatest extent possible. She said up to this point, MetroCOG has been told that this will not be the case and that MetroCOG will be responsible for non-interstate roadways on the NHS. In other states such as Kansas, which also gets several million in CMAQ funds and allocates a certain amount of those funds to the TMAs of Kansas City and Wichita so they can use those funds on congestion-related projects and MetroCOG would like NDDOT to answer that question as well. She said she has asked NDDOT several times and has not received an answer.
Commissioner Piepkorn said the switchover and the money loss is alarming. He said many of the local jurisdictions have decreased costs when federal money is into it, especially 32nd Avenue, which helped local businesses with special assessments. This is something he takes very seriously, he said, and over the long run, the metro area would have no money left to spend on other projects. He said Kansas has this very same issue; therefore, precedent is on MetroCOG’s side. The City Attorney needs to get involved, he said, and instead of asking NDDOT a question, MetroCOG has to tell NDDOT they have to follow precedent. He said this is a bit of a turf war now that the Fargo metro area is able to call its own shots and the City Attorney needs to notify NDDOT that the Fargo area is not going to accept this.
In response to a question from Commissioner Preston asking if there is a reason this is in a question format instead of saying this is what the Fargo area needs and wants, Ms. Gray said those questions could be rephrased as statements.
Mayor Mahoney said this would be devastating to how the Fargo area does things. The roadways in the Fargo area are a billion dollar asset and if additional projects are added to the CIP, there will not be enough money to sustain them, he said.
Commissioner Strand moved to join with local leaders of Cass County, West Fargo and Horace to pursue the matter of NHPP funding of non-interstate elements of the NHS in the urbanized area as well as the CMAQ funding.

Second by Piepkorn. On call of the roll Commissioners Strand, Piepkorn, Gehrig, Preston and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Amended Engineer’s Report and Amended Cost Participation and Maintenance Agreement with NDDOT for Improvement District No. BR-22-A1 Approved:
Assistant City Engineer Tom Knakmuhs said on March 21st, he came to the City Commission to discuss options for moving forward the 32nd Avenue South reconstruction project from 32nd Street to 22nd Street and the option selected was to close roadway sections to mitigate the construction complexity. He said since that meeting, he was notified by NDDOT that an additional $2,429,773.00 is available for the project, bringing the total amount to $7,938,393.00. The Engineer's Report reflects the increase, he said, which will be funded with City funds and the additional Federal funds and there will not be an increase in assessments. The changes include doing the project in four phases, he said, each ranging from 45 to 65 days and each offering incentives of $5,000.00 per day (up to $50,000.00) and $75,000.00 to $150,000.00 if phases are completed by specific dates. He said the bid letting will be June 10th.

Amy Norstad, Flint Group, gave a presentation on the various public engagement strategies that will be used during the project. She said additional engagement options include billboards, radio ads, email marketing and popup signage.

In response to a question from Commissioner Preston asking about the phasing timelines and is that the amount of time that portion of the road is going to be closed, Mr. Knakmuhs said it is; the contractor has that long to finish each of the segments and anything over that, the contractor will have liquidated damages. He said if the contractor finishes early, they get cash incentives.

In response to a question from Mayor Mahoney asking what caused the first bids to be so high, Mr. Knakmuhs said it was the constraints with the site. He said arterial roads commonly have 200 feet of right-of-way and 32nd Avenue only has 100 feet. He said in order to maintain traffic through the existing corridor and complete the construction on time and the constraints of the right-of-way was the main concern from contractors and that drove up pricing, as it would take longer to do the project. He said this is the Main Avenue model of using phases and getting in and getting out as soon as possible to minimize impact.

In response to a question from Commissioner Strand asking in the meantime, what can be done about potholes on that section of 32nd Avenue, Mr. Knakmuhs said Public Works is aware of the road condition and are waiting for the asphalt plants to open so they can do some patching until reconstruction begins.
Commissioner Piepkorn moved the Amended Engineer’s Report and Amended Cost Participation and Maintenance Agreement with NDDOT for Improvement District No. BR-22-A1 be approved.

Second by Gehrig. On call of the roll Commissioners Piepkorn, Gehrig, Preston, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Discussion Regarding the New West Fargo Elementary School in Rocking Horse Farm Addition:
Commissioner Piepkorn said he had a call from a resident asking about the proposed new West Fargo Elementary School in Rocking Horse Farm Addition and how that would affect property taxes. The caller wanted to know what happens to the revenue that is obviously land in the City of Fargo, there is a public school being built on it from West Fargo, therefore it is lost property tax revenue for the City. He said his question is what happens now? Does the City get reimbursed similar to the way the Diversion is reimbursed by the City? He said he did not have a good answer for the resident.

City Attorney Nancy Morris said once the City sells property to somebody it is up to the buyer to decide what they want to do with the land and whether it is taxable or not. She said that area is zoned for use as a school, this was presented to the Planning Commission and approved by the City Commission. That land sale is in accordance with the zoning present in that location, she said.

Commissioner Piepkorn said the taxpayers are losing property tax revenue and it is not a Fargo school so is someone reimbursing the City? He said it is not right that the City is losing property tax revenue to an entity that is not the City of Fargo

Commissioner Strand said this is an interesting topic on many fronts. He said many do not realize that about 48 percent of the West Fargo School District is Fargo and 42 percent of the West Fargo School District is Fargo. He said it is a dicey issue and he will leave it at that.

Bids Received for New Utility Construction Improvement District No. UN-22-M1:
The bids for New Utility Construction Improvement District No. UN-22-M1 in the City of Fargo, North Dakota were opened at 11:45 o'clock a.m., Wednesday, April 27, 2022 and the bids were found to be as follows:

Dirt Dynamics, LLC Fargo, ND
Bid: $1,255,415.82

Dakota Underground Company Fargo, ND
Bid: $1,283,521.09

Sellin Brothers, Inc. Hawley, MN
Bid: $1,423,315.00

Contract for New Utility Construction Improvement District No. UN-22-M1 Awarded to Dirty Dynamics, LLC in the Amount of $1,255,415.82:
Commissioner Preston offered the following Resolution and moved its adoption:
WHEREAS, The City Engineer has prepared and filed a detailed statement of the estimated costs of New Utility Construction Improvement District No. UN-22-M1; and
WHEREAS, The Board of City Commissioners of the City of Fargo has considered the bids received New Utility Construction Improvement District No. UN-22-M1 in the City of Fargo, North Dakota; and
WHEREAS, The City Engineer's tabulation of the bids received for New Utility Construction Improvement District No. UN-22-M1 shows the bid of Dirty Dynamics, LLC of Fargo, North Dakota, in the sum of $1,255,415.82 to be the lowest and best bid received.
NOW, THEREFORE, BE IT RESOLVED, That the Board of City Commissioners finds and declares the bid received from Dirt Dynamics, LLC in the sum of $1,255,415.82 is the lowest and best bid received.
BE IT FURTHER RESOLVED, That the contract for New Utility Construction Improvement District No. UN-22-M1 in the City of Fargo, North Dakota, be and the same is hereby awarded to Dirt Dynamics, LLC for the sum of $1,255,415.82, subject to the supervision, inspection and approval of the City Engineer, and in accordance with the Plans and Specifications filed in the office of the City Auditor.

Second by Piepkorn. On the vote being taken on the question of the adoption of the Resolution Commissioners Preston, Piepkorn, Gehrig, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the Resolution was adopted.

Agreement for Early Building Permit with West Fargo Public School District No. 6 Approved (Improvement District No. UN-22-M1):
The Board received a Report of Action from the Public Works Projects Evaluation Committee stating the Committee reviewed an application for an early building permit submitted by the West Fargo Public School District No. 6 to support the construction of an elementary school at Lot 1, Block 1, Rocking Horse Farm 6th Addition slated for opening in 2023. They said the applicant will provide a deposit of $23,395.00 that could be used to repair any impacts from the site construction to the municipal project.

City Engineer Brenda Derrig said when buildings will take longer than a year to construct, an early building permit can be issued where there is no sewer or water service. She said an early building permit was requested due to the fact that West Fargo Public Schools want to open the new school in the fall of 2023.
Commissioner Gehrig moved the Agreement for Early Building Permit with West Fargo Public School District No. 6 (Improvement District No. UN-22-M1) be approved.

Second by Preston. On call of the roll Commissioners Gehrig, Preston, Piepkorn, Strand and Mahoney voted aye.
No Commissioner being absent and none voting nay, the motion was declared carried.

Status Report on Tax Increment Financing Districts: City Attorney Directed to Meet with the Attorneys for Roers Development:
Director of Strategic Planning Jim Gilmour went over the status of Tax Increment Financing (TIF) Districts that provide a benefit to an owner/developer through a TIF note that pays a developer for costs of development. He said there were several TIF Districts approved over the last four years, which have completion dates in 2023 and 2024: Oak Grove Housing, apartments and condos, 12/31/23; Brewhalla, mixed use hospitality, 1/1/24; Kmart site, mixed use commercial 12/31/24; and J-Street, apartment buildings, 12/31/23. He said the Newman-Roers project was approved in 2019 and was to be completed by the end of 2021 subject to unavoidable delays. There were several phases to the project, he said, including a church, faith-based housing, market-rate student housing and a requirement to build seven townhomes along 12th Street North. He said the apartment building, faith-based housing and church are complete; however, no work has begun on the seven townhomes, which were required by the Development Agreement. The City has received $29,000.00 in TIF revenue and early next year the City is due to receive another $145,000.00; however, until those townhomes are built the Agreement would require the City to hold that money until the project is complete.

Jim Roers, Roers Development, said there were four distinct phases to the project and as the student housing and faith-based projects were finished, congestion began to be a real issue and as work continued on the church and auxiliary space, the complexity of the project continued to get even greater. He said it is going to be a beautiful structure when completed; however, it has taken more time than anticipated when this Agreement was put together. He said the effects of COVID-19 and the costs to construct the townhomes has greatly changed the numbers. He is not here to say the townhomes are not going to be built, he said; they will be built to honor the commitments made to the Roosevelt neighborhood. He said he would like to have more time to let some of the pricing moderate before engaging construction. The Agreement does not allow for flexibility in timing, he said; however, he would ask the City Commission to consider modifying the Agreement to allow for pricing to moderate and for Roers to implement the majority of the TIF District plan. He said he would like a timetable with a drop-dead date that would say after this point in time, if the townhomes are not done, this is the plan of action.

In response to a question from Commissioner Piepkorn asking if the City received any written notice of these challenges, Mr. Gilmour said there were no written notices.

Commissioner Piepkorn said when construction projects get delayed, the contractors write a letter and ask for a review; therefore, this situation is laughable. He said what is reflective is all the apartments where money is coming in are completed. Perhaps the townhomes were never going to be built in the first place, he said. Mr. Roers has no credibility, he said, and he would encourage the City Commission to not take action tonight. He said the City needs to weigh all of the options and the first thing is schedule a meeting with Mr. Roers and the Roosevelt Neighborhood Association so he can explain himself to that group. He said one of the options he would like is tearing down the project and making Mr. Roers build new homes to replace the homes he let deteriorate.

Commissioner Preston said she was not on the City Commission at the time this was approved and would not have been a vote to approve it due to the way it was handled. She said this is a breaking of a contract, which makes it null and void. She said this is way beyond the deadline and she would not agree to a delay.

In response to a question from Commissioner Gehrig asking what are the next steps, City Attorney Nancy Morris said there are some options available and there is the possibility of an extension. The contract did end at the end of 2021, she said, however; the argument is that there have been unavoidable delays, which is provided for in the contract.

Commissioner Strand said this project took a lot of mediation and negotiation and took some resolve on both sides to come up with a project. He said all parties ended up agreeing with a project to include the seven townhomes. He would not have known this project was in jeopardy until it came to the City Commission tonight and should have been addressed prior to the conclusion of the term of the contract agreement. He said there was an immense amount of investment in a relationship with the Roosevelt neighborhood, which paid an incalculable price.

Mr. Roers said there was never an intention not to do what was committed. He said he has apologized for the fact that timing may not be on his side, he thought he was working with the City in a state of cooperation and there would be give and flow with each other's needs. He said the site was extremely congested during the process, he did not know there was a time clock as it related to the completion of the townhomes and he did not know at that time that his daughter was going to run for mayor. The accusations made are totally unfounded, he said, and based on an individual's impression. He said he does intend to build the townhomes.

Commissioner Gehrig said he encourages the Roosevelt neighborhood to get active now before new agreements happen, have meetings and make sure the neighbors know what is happening. If the Agreement is not followed through, he said, there are going to be proposals to make changes and if opposed to that, it is better to be active now instead of later. He never supported the incentive, he said, so the odds of him allowing an extension are zero due to the fact that he wants to take this incentive away. He said Mr. Roers will sue; therefore, the City needs to be able to say it did its due diligence, heard from Mr. Roers, heard from the attorneys and the neighborhood.

Commissioner Preston said she often has to defend incentives to the public and it is all based on trust and she feels the trust has been broken here. She said Mr. Roers indicated that congestion and expense of supplies and materials is causing this delay and those issues should have been anticipated. She said the timeframe is clearly identified in the Agreement and she is disappointed this has happened. She said the City Attorney needs to come back with options for what can be done and how to handle this as she does not want this to get into a negotiating process. She said she was referring to having a breach of contract unless the unavoidable delays is the claim and that is the opinion needed from the City Attorney.

Jim Lashkewitsch, president of the Roosevelt Neighborhood Association, said a whole block of homes were demolished. He said the core issue was to try and protect the character of the neighborhood, he said, and the townhomes were there to be a buffer on the east side of the project. The neighborhood was forced into negotiations, he said, and thought at the end of negotiations it had a settlement they could work with; however, what the neighborhood has now is unacceptable. He said what they got was a large block-type building to house a lot of college students.

Mr. Gilmour said there will not be as much TIF money as anticipated due to the fact that the faith-based housing the City assumed would be taxable is not taxable due to a change in State law. He said the City did receive about $69,000.00 this year and that is in the TIF fund that could be used for a neighborhood project such as acquiring a dilapidated house and demolishing it.
Commissioner Gehrig moved to direct the City Attorney meet with the attorneys for Roers Development.

Second by Strand. On call of the roll Commissioners Gehrig, Strand, Piepkorn and Mahoney voted aye.
Commissioner Preston voted nay.
The motion was declared carried.

At 6:33 p.m., the Board took a five-minute recess.
After recess: All Commissioners present. Mayor Mahoney presiding.

Sale of City-owned Property at 401 3rd Avenue North Approved: Staff Directed to Draft a Development Agreement with Green Acre/Lloyd Companies:
Director of Strategic Planning Jim Gilmour said the City Commission directed preparation of a Riverfront Renewal Plan in October 2020, which was completed and adopted by the City Commission in April 2021. The Plan included actions to sell several City-owned properties for redevelopment, he said. Request for Proposals and selection criteria for the three properties were approved by the City Commission in September and October 2021, he said, and proposals were due in November. Two proposals were submitted for the 401 3rd Avenue North property, he said: MBA Investments, LLC, who proposed to build an apartment building at the site; and Green Acre/Lloyd Companies, who would trade the City property at 401 3rd Avenue North for properties a block north at 4th Avenue and 4th Street, including a property owned by American Federal Bank, where they would build a hotel and apartment building. The City-owned property would then be demolished for surface parking for American Federal Bank, he said. The proposals were reviewed by the Economic Development Incentives Committee and the Renaissance Zone Authority, he stated, and due to the fact that the proposals are on two different sites, the Committees asked City staff to explore options to build both development proposals. He said the City discussed options with American Federal Bank and both developers; however, there was not an alternative that allowed for both developments to proceed. The Green Acre/Lloyd Companies’ offer for the property is $500,000.00 to construct a hotel and apartment building with 115 hotel rooms and 108 apartments with an estimated investment of $38.5 million. The MBA Investments offer for the property is also $500,000.00 and its proposal is to construct an apartment building on the site with 68 units with an estimated investment of $12 to $13 million. He said the Board will only be dealing with the sale of the property tonight and not voting on any incentives.

In response to a question from Commissioner Strand asking which location the Board is voting on, Mr. Gilmour said if the Board were to select the proposal from Green Acre/Lloyd, the hotel and apartments would be constructed at 4th Street and 4th Avenue North and the 401 3rd Avenue North site would be demolished and American Federal Bank would become the new owner of that property and use it for surface parking. If the MBA proposal is selected, apartments will be built on the 401 3rd Avenue North site and the 4th Street and 4th Avenue North site would be unchanged. He said both are good proposals and consistent with the Downtown Plan, which made it difficult for the Committees to make a recommendation. He said if the City is looking for more investment, the hotel proposal would mean more activity; however, the MBA proposal means more housing Downtown.

Mayor Mahoney said he was pleased with the MBA group due to the fact that they tried to work with the City on the parking aspect. He said underground parking was discussed for American Federal Bank; however, it was not quite as much as they wanted. He said it would have been great to get both proposals; however, now it is a choice of one or the other and either way the City is left with surface parking. He said American Federal Bank may sell the parking lot to a builder later if there is new ownership of the bank.

Commissioner Preston said she is disappointed American Federal Bank and the City could not agree to another option and it is unfortunate that this may end up being another surface parking lot due to the fact that both are good projects. Technically, she said, the City is replacing a parking lot with a parking lot; therefore, that revenue stays the same either way.

Commissioner Gehrig said 401 3rd Avenue North is not going to stay a surface parking lot forever and it is easier and less expensive to develop on a blank slate; therefore, the $38 million proposal from Green Acre/Lloyd Companies is the best.

Commissioner Piepkorn said he will abstain from voting due to the fact that he owns the building at 417 5th Street North, which would be part of the sale to Green Acre/Lloyd Companies.
Commissioner Gehrig moved the sale of City-owned property at 401 3rd Avenue North be awarded to Green Acre/Lloyd Companies and appropriate staff be directed to draft a Development Agreement consistent with the offer from the developer.

Second by Preston. On call of the roll Commissioners Gehrig, Preston and Mahoney voted aye.
Commissioner Strand voted nay.
Commissioner Piepkorn abstained from voting.
The motion was declared carried.

Commissioner Gehrig moved that the Board adjourn to 5:00 o’clock p.m., Monday, May 16, 2022.
Second by Strand. All the Commissioners voted aye and the motion was declared carried.
The time at adjournment was 6:49 o’clock p.m.